State v. Nazier D. Goldsmith(A-77-20

 State v. Nazier D. Goldsmith(A-77-20 

The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed.

State v. Nazier D. Goldsmith (A-77-20) (085636) Argued January 18, 2022 -- Decided July 5, 2022 

PIERRE-LOUIS, J., writing for the Court. 

In this case, the Court must determine whether reasonable and articulable suspicion existed when a police officer conducted an investigatory stop of defendant Nazier Goldsmith on a walkway adjacent to a vacant house. 

On the evening of January 15, 2019, Officer Joseph Goonan and another officer were on patrol in Camden in what they believed to be a “high-crime area” known for shootings and drug dealing. While approaching the vacant house, the officers observed two individuals standing in front of it. When the officers exited their vehicle, the two individuals walked away. At the same time, a third person, defendant, exited the walkway that leads to the rear of the house. 

Based on his training, 20 years of experience, and his belief that the vacant house was used for the sale of drugs and weapons, Officer Goonan found it suspicious that defendant was on the walkway next to the vacant house and believed defendant was engaged in drug dealing activity. The officers approached defendant, blocked his path at the end of the walkway, and began questioning him, asking for his name and for an explanation of his presence on that walkway. 

According to Officer Goonan, defendant became nervous and looked up and down the street; he started sweating, and his hands began to shake. Defendant provided a name and informed officers that his identification was in his jacket pocket. Because defendant’s demeanor made him nervous, Officer Goonan told defendant that he would retrieve the identification from defendant’s pocket. At that point, defendant stated, “I appreciate if you guys didn’t pat me down,” arousing Officer Goonan’s suspicions even further. 

Officer Goonan conducted a pat down for weapons. The officer felt a weapon in defendant’s jacket pocket and retrieved a handgun. Defendant was arrested, and police later recovered currency and drugs from defendant’s person. A search of the walkway revealed drugs in baggies that were the same color as the baggies of drugs found in defendant’s pockets. 

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Defendant was charged with weapons and drug offenses. Defendant moved to suppress the gun and drugs, arguing that both the stop and frisk were unlawful. The trial court granted the motion, finding the stop lawful but the frisk unlawful. The Appellate Division reversed. Without addressing the initial stop, the appellate court found that the frisk of defendant was objectively reasonable. The Court granted leave to appeal. 248 N.J. 3 (2021). 

HELD: The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed. 

1. An investigative or Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), is a relatively brief detention by police during which a person’s movement is restricted. Such a stop does not offend the Federal or State Constitution, and no warrant is needed, if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Although reasonable suspicion is a less demanding standard than probable cause, it cannot be based on inarticulate hunches or an arresting officer’s subjective good faith. Whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of the totality of circumstances surrounding the police-citizen encounter, balancing the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. The inquiry considers numerous factors, including officer experience and knowledge. It is well-settled that seemingly furtive movements by the suspect, without more, are insufficient to constitute reasonable and articulable suspicion. And although the reputation of an area may be relevant to the analysis, just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. (pp. 17-20) 

2. 

To determine whether reasonable and articulable suspicion existed here, the 

Court first considers when the investigatory stop commenced. Although officers did 

not tell defendant to “stop” when he exited the walkway, they blocked his path, and 

Officer Goonan acknowledged that defendant could not have moved forward freely 

at that point. No reasonably prudent person would have felt free to leave when 

officers stepped into the only path of egress and began asking questions, leaving 

defendant no place to go but backwards. The moment officers impeded defendant’s 

forward progress and began the questioning, the encounter became an investigatory 

detention or stop. 

(pp. 20-22) 

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3. Turning to whether officers had reasonable and articulable suspicion to stop defendant at that point in time, the Court stresses that Officer Goonan unequivocally testified that he did not witness defendant interact with or engage in a hand-to-hand transaction with the two men that left the scene, contrary to the trial court’s finding that the two men were with defendant. As for defendant’s presence in a high-crime area, the Court continues to view the impact of previous crimes in the same area as a police encounter as a factor to be considered in the totality of the circumstances when determining whether a stop was based on reasonable suspicion. However, the State must do more than simply invoke the buzz words “high-crime area” in a conclusory manner to justify investigative stops. Here, Officer Goonan’s vague testimony fell short of providing factual support for his conclusory statement that the area was high crime. The State must provide at least some evidence to support the assertion that a neighborhood should be considered as “high-crime.” (pp. 22-26) 

4. Here, even if Officer Goonan had provided more information regarding the prevalence of crime in the area, that would have been insufficient to justify the stop because the other factors on which the officers relied were also insufficient -- even when taken together -- to form a reasonable and articulable suspicion that defendant was engaged in criminal activity. The only information the officers possessed prior to the stop was information that could be used to justify the stop of virtually anyone, on any day, and at any time, based simply on their presence on that street. Officer Goonan had a hunch that defendant was engaged in criminal activity. That hunch, however, did not amount to objectively reasonable and articulable suspicion for an investigatory stop. Because the stop here was unlawful, the Court does not reach the lawfulness of the frisk. (pp. 26-28) 

REVERSED. REMANDED for REINSTATEMENT of the suppression order . 

State v. Nazier D. Goldsmith (A-77-20) (085636) Argued January 18, 2022 -- Decided July 5, 2022 

PIERRE-LOUIS, J., writing for the Court. 

In this case, the Court must determine whether reasonable and articulable suspicion existed when a police officer conducted an investigatory stop of defendant Nazier Goldsmith on a walkway adjacent to a vacant house. 

On the evening of January 15, 2019, Officer Joseph Goonan and another officer were on patrol in Camden in what they believed to be a “high-crime area” known for shootings and drug dealing. While approaching the vacant house, the officers observed two individuals standing in front of it. When the officers exited their vehicle, the two individuals walked away. At the same time, a third person, defendant, exited the walkway that leads to the rear of the house. 

Based on his training, 20 years of experience, and his belief that the vacant house was used for the sale of drugs and weapons, Officer Goonan found it suspicious that defendant was on the walkway next to the vacant house and believed defendant was engaged in drug dealing activity. The officers approached defendant, blocked his path at the end of the walkway, and began questioning him, asking for his name and for an explanation of his presence on that walkway. 

According to Officer Goonan, defendant became nervous and looked up and down the street; he started sweating, and his hands began to shake. Defendant provided a name and informed officers that his identification was in his jacket pocket. Because defendant’s demeanor made him nervous, Officer Goonan told defendant that he would retrieve the identification from defendant’s pocket. At that point, defendant stated, “I appreciate if you guys didn’t pat me down,” arousing Officer Goonan’s suspicions even further. 

Officer Goonan conducted a pat down for weapons. The officer felt a weapon in defendant’s jacket pocket and retrieved a handgun. Defendant was arrested, and police later recovered currency and drugs from defendant’s person. A search of the walkway revealed drugs in baggies that were the same color as the baggies of drugs found in defendant’s pockets. 

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Defendant was charged with weapons and drug offenses. Defendant moved to suppress the gun and drugs, arguing that both the stop and frisk were unlawful. The trial court granted the motion, finding the stop lawful but the frisk unlawful. The Appellate Division reversed. Without addressing the initial stop, the appellate court found that the frisk of defendant was objectively reasonable. The Court granted leave to appeal. 248 N.J. 3 (2021). 

HELD: The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed. 

1. An investigative or Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), is a relatively brief detention by police during which a person’s movement is restricted. Such a stop does not offend the Federal or State Constitution, and no warrant is needed, if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Although reasonable suspicion is a less demanding standard than probable cause, it cannot be based on inarticulate hunches or an arresting officer’s subjective good faith. Whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of the totality of circumstances surrounding the police-citizen encounter, balancing the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. The inquiry considers numerous factors, including officer experience and knowledge. It is well-settled that seemingly furtive movements by the suspect, without more, are insufficient to constitute reasonable and articulable suspicion. And although the reputation of an area may be relevant to the analysis, just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. (pp. 17-20) 

2. 

To determine whether reasonable and articulable suspicion existed here, the 

Court first considers when the investigatory stop commenced. Although officers did 

not tell defendant to “stop” when he exited the walkway, they blocked his path, and 

Officer Goonan acknowledged that defendant could not have moved forward freely 

at that point. No reasonably prudent person would have felt free to leave when 

officers stepped into the only path of egress and began asking questions, leaving 

defendant no place to go but backwards. The moment officers impeded defendant’s 

forward progress and began the questioning, the encounter became an investigatory 

detention or stop. 

(pp. 20-22) 

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3. Turning to whether officers had reasonable and articulable suspicion to stop defendant at that point in time, the Court stresses that Officer Goonan unequivocally testified that he did not witness defendant interact with or engage in a hand-to-hand transaction with the two men that left the scene, contrary to the trial court’s finding that the two men were with defendant. As for defendant’s presence in a high-crime area, the Court continues to view the impact of previous crimes in the same area as a police encounter as a factor to be considered in the totality of the circumstances when determining whether a stop was based on reasonable suspicion. However, the State must do more than simply invoke the buzz words “high-crime area” in a conclusory manner to justify investigative stops. Here, Officer Goonan’s vague testimony fell short of providing factual support for his conclusory statement that the area was high crime. The State must provide at least some evidence to support the assertion that a neighborhood should be considered as “high-crime.” (pp. 22-26) 

4. Here, even if Officer Goonan had provided more information regarding the prevalence of crime in the area, that would have been insufficient to justify the stop because the other factors on which the officers relied were also insufficient -- even when taken together -- to form a reasonable and articulable suspicion that defendant was engaged in criminal activity. The only information the officers possessed prior to the stop was information that could be used to justify the stop of virtually anyone, on any day, and at any time, based simply on their presence on that street. Officer Goonan had a hunch that defendant was engaged in criminal activity. That hunch, however, did not amount to objectively reasonable and articulable suspicion for an investigatory stop. Because the stop here was unlawful, the Court does not reach the lawfulness of the frisk. (pp. 26-28) 

REVERSED. REMANDED for REINSTATEMENT of the suppression order . 

 

Municipal Court Lacked Jurisdiction to Enter Judgment of Conviction Enforcing City's Notice of Unsafe Building Condition and permitting building to be torn down State v. Balani

 Municipal Court Lacked Jurisdiction to Enter Judgment of Conviction Enforcing City's Notice of Unsafe Building Condition and permitting building to be torn down

State v. Balani

 

 

Defendant appealed from his conviction for violating state building codes and from the municipal court's judgment that ordered defendant's building be demolished and a lien placed on the property. In 2007, defendant received notice that his building was an "unsafe structure" due to the lack of electrical power and ruptured water lines. By 2011, defendant had not fixed the property, resulting in the issuance of another notice. A third notice was issued in 2017, which identified other problems including holes in the roof and failure of load-bearing walls. Defendant was then charged with maintaining an unsafe structure. At trial, the municipal court heard testimony from the municipality's construction official and from a civil engineer who testified on behalf of defendant. The experts disagreed over the extent of damage and the repairs needed. Defendant's expert testified that the building needed about $12,000 in repairs, while the municipal construction officer opined that the building needed to be demolished. The municipal court found the construction officer's testimony more credible and concluded that the building needed more work than identified by defendant's expert. The municipal court ordered defendant to obtain estimates from a licensed contractor and to provide proof that he could come up with the funds necessary to repair the building. When defendant could not prove that he had the money for repairs, the municipal court ordered the building demolished, stating that the structure was unsound and at imminent risk of collapse. Defendant appealed, and during the pendency of the appeal the building was demolished. On appeal, the court first ruled that the appeal was not mooted by the building's demolition as defendant still had an interest in overturning his quasi-criminal conviction. The court vacated the conviction and dismissed the complaint, ruling that the municipal court lacked jurisdiction because it could only hear an action to enforce a fine imposed after a notice of unsafe condition, not to compel compliance with the notice

 

 

NJLJ July 19, 2022 

 

STATE OF NEW JERSEY, Plaintiff, 

v.
HINDRAJ L. BALANI, 

Defendant.

Decided: December 29, 2020 

SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY
LAW DIVISION, CRIMINAL PART MUNICIPAL APPEAL NO. MA-13-2019 

APPROVED FOR PUBLICATION July 19, 2022 COMMITTEE ON OPINIONS

 

R. J. JONES, J.S.C. 

Hindraj L. Balani (defendant) filed this appeal after Woodbridge Township’s municipal court found him guilty of violating state regulations prohibiting unsafe structures. N.J.A.C. 5:23-2.32(a). In sentencing Balani, the municipal court ordered the building he owned demolished, ordered that a lien be placed on his property, and ordered him to pay court costs. This appeal followed. In deciding it, the court addresses several issues, most importantly, 

whether the regulations dealing with unsafe structures allow a municipal court, and in turn this court, to order a building demolished. They do not, and this opinion explains why. 

The issues, as framed by Balani, condense to three: 1) that Woodbridge Township’s code enforcement officer failed to meet the notice requirements set out in the regulation, and thus, that he cannot be found guilty of violating it; 2) that the municipality’s construction official lacked the expertise to testify about his building’s structural integrity and should have been barred from doing so; and 3) that even if this court allows the testimony of the construction official, the court should accept the testimony of his expert, an engineer, over that of the construction official. 

As explained below, the court need not reach each of these issues. While providing the de novo review required by this appeal, concerns arose about the procedures employed below—issues that go to the heart of this court’s review. This opinion examines these issues, as well as whether the appeal should be dismissed as moot, something the State contends in its response. 

Facts
Balani owns property in Woodbridge’s Keasbey section. Starting in 2007, 

municipal officials began issuing notices warning that a building on the property was an “unsafe structure” as that term is defined in the New Jersey 

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Administrative Code.1 The first notice was issued in 2007. It indicated that the building lacked electrical power because water lines had ruptured. From the record, it appears that officials took no further action after issuing the notice. 

As of 2011, Balani still had not fixed the problems, prompting the municipality to issue another notice. At this point, the roof and walls had begun to deteriorate. The next notice, issued in 2017, described similar problems: Holes plagued the roof, which was deteriorating, and the load-bearing walls were failing. 

Based on these continuing problems, Woodbridge Township issued a municipal-court complaint charging Balani with maintaining an unsafe structure, which violates N.J.A.C. 5:23-2.32(a). The municipality issued the complaint in February 2019, and about two months later the case went to trial. The municipal judge heard two witnesses: Thomas Kelly, the municipality’s construction official, and Md A. Huq, a civil engineer who testified for Balani. The experts disagreed about the extent of the damage and the work needed to repair it. Huq estimated the repairs at about $12,000, while Kelly believed the building would need to be demolished. 

1 The State attached copies of the notices to its appellate filings even though they were not marked into evidence at the municipal-court hearing. Because de novo review is conducted on the record below, these documents will not be considered. See R. 3:23-8. The discussion in this opinion about the contents of the notices comes from the trial testimony. 

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The municipal court agreed with Kelly, finding that the scope of the repairs exceeded those in Huq’s estimates. As a result, the court gave Balani a week to prove he could come up with $50,000—the estimated cost to repair the building. In addition, the court ordered Balani to obtain estimates from a licensed contractor showing the scope and cost of the work. The judge warned Balani: If he did not provide these estimates and show that he had the money available, the court would order the building demolished. 

When he returned to court, Balani could not prove he had the money to repair the building, so the municipal court judge ordered it demolished. In doing so, the court said the building was unsound and in imminent danger of collapse. The court found Balani guilty of violating N.J.A.C. 5:23-2.32(a). It did not impose a fine for the violation, just court costs. The judge then stayed the decision for twenty days to allow this appeal. After Balani filed it, this court dismissed the appeal because his attorney failed to submit a timely brief. It was then reinstated several months later, after the problem was cured. In the meantime, though, Woodbridge officials demolished the building, as ordered by the municipal court. 

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Analysis
Before getting to the substance of the appeal, it is important to understand 

the lens through which it must be viewed. When considering an appeal from a municipal court, the Law Division conducts a de novo review of the record below. R. 3:23-8(a)(2). In doing so, the judge must independently review the defendant’s guilt or innocence. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). The Law Division does not affirm or reverse the court below, but rather, decides the case anew. State v. Carlson, 344 N.J. Super. 521, 525 n.2 (App. Div. 2001). This includes resentencing the defendant “as provided by law.” R. 3:23-8(e). 

A. Mootness 

The first issue is a threshold one: whether the building’s demolition moots the appeal and requires its dismissal. The court need not reach any other issues if this is the case. 

“An issue is ‘moot’ when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.” Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). According to the State, this appeal is moot because Woodbridge demolished Balani’s building. In other words, according to the State, the building’s demolition prevents this 

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court from rendering an order that has any practical effect on the parties and their controversy. 

The court agrees with the State to a point: The demolition cannot be undone. But criminal convictions do not become moot simply because the defendant served the sentence. N.J. State Parole Bd. v. Boulden, 156 N.J. Super. 494, 496-97 (App. Div. 1978). This principle extends to quasi-criminal convictions. Ibid. For these types of convictions, “service of the sentence or the payment of the fine imposed on the conviction—or even the death of the defendant himself—pending appeal, does not moot appellate review and determination of the propriety of th[e] conviction.” Id. at 497. Courts recognize that the conviction itself can lead to “collateral legal disadvantages, civil disabilities or public stigma.” Ibid. “It seriously affects [a defendant’s] reputation and economic opportunities.” Ibid. 

Courts also will hear otherwise moot appeals when they present issues of “significant public importance.” State v. McCabe, 201 N.J. 34, 44 (2010). And notably, courts hear otherwise moot appeals when the issues are “likely to recur.” State v. Gartland, 149 N.J. 456, 464 (1997). 

There are multiple reasons to hear Balani’s appeal despite the building’s demolition. For starters, the matter is quasi-criminal. Balani faces a conviction that could easily bring collateral consequences, including legal, personal, and 

 

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business consequences. A conviction like the one here affects a defendant’s business reputation and economic opportunities. So appellate review has a “real and meaningful purpose.” Boulden, 156 N.J. Super. at 497. 

The court also finds that because of the important issues raised—which deal with the municipal court’s authority and the procedures used in Woodbridge—the situation here is likely to recur. If that is the case, the parties need guidance in how to follow the procedural requirements of N.J.A.C. 5:23- 2.32(a). So, even if technically moot, the issues on appeal need to be addressed. 

B. The Regulatory Scheme 

Balani was charged with violating a regulation enacted under the State Uniform Construction Code Act (UCC), more specifically, N.J.A.C. 5:23- 2.32(a). This regulation sets out procedural steps municipalities and property owners must follow when dealing with alleged unsafe structures. In providing de novo review, it is important to understand these procedural steps, so this opinion will set them out in detail. 

When a building or structure is deemed unsafe, N.J.A.C. 5:23-2.32 requires the owner to remedy the problem: “All buildings or structures that shall become unsafe . . . shall be deemed unsafe buildings or structures, shall be taken 

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down and removed or made safe and secure.”2 N.J.A.C. 5:23-2.32(a). This regulation requires subcode officials to examine buildings and structures reported to be unsafe and to render a report that is then filed with the municipality. N.J.A.C. 5:23-2.32(a)(1). 

If deemed unsafe, the municipality must also notify the owner about the condition of the building or structure, about the required repairs, and about the time within which the required repairs (including possible demolition) must be completed: 

Notice of unsafe structure: If an unsafe or unsanitary condition is found in a building or structure, the construction official shall serve a written notice describing the building or structure deemed unsafe and specifying the required repairs or improvements to be made to render the building or structure safe and secure, or requiring the unsafe building or structure or portion thereof to be vacated or demolished within a stipulated time. Such notice shall require the person thus notified to immediately declare to the construction official his or her acceptance or rejection of the terms of the order. Such person may seek review before the Construction Board of Appeals within 15 days of receipt of the notice. 

[N.J.A.C. 5:23-2.32(a)(2).]
As the text explains, those receiving the notice (usually the owner) must either accept or reject its terms immediately. Ibid. In addition, appeals must be filed 

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definition as “unsafe.” 

For ease of reference, this opinion refers to buildings that fall under this 8 

within fifteen days. Ibid. The county’s Construction Board of Appeals hears the appeal. Ibid. 

The regulation also contains a provision that applies when an owner fails to comply. It allows the construction official to pursue the remedies contained in the remaining UCC regulations and to pursue relief through legal counsel: 

Upon refusal or neglect of the person served with a notice of unsafe structure to comply with the requirements of the order to abate the unsafe condition, the construction official shall, in addition to any other remedies herein provided, forward the matter to the legal counsel of the jurisdiction for an action to compel compliance. 

[N.J.A.C. 5:23-2.32(a)(5).]
While N.J.A.C. 5:23-2.32(a) does not contain a provision allowing for 

fines, the language quoted above incorporates all other remedies in the UCC’s regulations. Ibid. These remedies are contained in N.J.A.C. 5:23-2.31, which (among other things) allows construction officials to assess monetary penalties against those who violate the UCC or its regulations. N.J.A.C. 5:23- 2.31(b)(1)(iii). Penalties are collected under the Penalty Enforcement Law of 1999, N.J.S.A. 2A:58-10 to -12. N.J.A.C. 5:23-2.31(b)(6). Jurisdiction to enforce penalties levied by the construction official is lodged in both municipal courts and the Superior Court. Ibid. 

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C. Compliance with the Regulatory Scheme 

With this regulatory scheme in mind, the court will turn to what happened here. For a variety of reasons related to the trial below, Balani claims that the municipal-court judge should not have found him guilty of violating N.J.A.C. 5:23-2.32(a). Yet the court need not go down that path. As the regulation makes clear, if Balani disagreed with the notices served upon him, he needed to do two things: 1) immediately notify the construction official, and 2) appeal within fifteen days to the County Construction Board of Appeals. He did neither. As a result, he forfeited his right to challenge the construction official’s determination about the condition of his building. This precluded the need for a trial on this issue. 

Balani disagrees. He says the construction official failed to meet the procedural requirements of N.J.A.C. 5:23-2.32 when filling out the Notices of Unsafe Structure. More specifically, he says the notices did not include information required by the regulation. He also says the official failed to file a report with the municipality detailing the condition of the structure, as required by N.J.A.C. 5:23-2.32(a)(1). So, according to Balani, he could bypass the Construction Board of Appeals. 

This argument is unconvincing for two reasons. First, the record does not support Balani’s allegations, as he never raised them below. He did not question 

10

the sufficiency of the notices or any of the related issues he raises now. In fact, the notices are not even part of the record. 

Second, if Balani took issue with the sufficiency of the notices or whether Woodbridge complied with the regulation in other ways, he could have raised these concerns with the Construction Board of Appeals—the agency the Legislature designated to hear appeals. It comes down to this: Balani failed to appeal to the Construction Board of Appeals, and that barred him from challenging the condition of his property and the need for demolition when he appeared before the municipal court. 

But this does not end the inquiry. After receiving the notices, Balani did nothing to remedy the unsafe condition of his property. At that point, the construction official had two methods to enforce his decision. For starters, he could have assessed a monetary penalty under N.J.A.C. 5:23.2.31 and then sought to enforce the penalty in municipal court (or Superior Court). This requires several steps. First, the construction official would need to assess the fine.3 Then, if Balani failed to pay it, the official had the ability to file in 

3 

The Department of Community Affairs (DCA) publishes a manual that contains approved forms officials use when assessing monetary penalties under the UCC. DCA, Municipal Procedures Manual, 70, 112 (2018), www.nj.gov/dca/divisions/codes/publications/muni_proc_man.html (last visited Dec. 1, 2020). The manual is referenced in the regulations. See N.J.A.C. 5:23-1.4. The manual “detail[s] the steps to be followed in completing, processing, and filling the standard forms, logs and reports required for 

11

municipal court using the special form of summons and complaint for penalty enforcement proceedings. R. 7:2-1(h). If this procedure had been followed, the municipal court would have had jurisdiction to enforce the penalty via the Penalty Enforcement Law. The regulations specifically provide for this. 

The construction official also could have “forward[ed] the matter to the legal counsel of the jurisdiction for an action to compel compliance.” N.J.A.C. 5:23-2.32(a)(5). While the regulations do not say which courts have jurisdiction to hear this type of action, the proper venue would have been Superior Court. Municipal courts have limited jurisdiction. N.J.S.A. 2B:12-17. By statute, that jurisdiction is limited to 

a. Violations of county or municipal ordinances; 

b. Violations of the motor vehicle and traffic laws; 

c. Disorderly persons offenses, petty disorderly persons offenses and other non-indictable offenses except where exclusive jurisdiction is given to the Superior Court; 

d. Violations of the fish and game laws; 

e. Proceedings to collect a penalty where jurisdiction is granted by statute; 

f. Violations of laws regulating boating; and 

administration and enforcement of the State Uniform Construction Code.” Ibid. The form for assessing penalties is entitled Notice and Order of Penalty (UCC- F212). Municipal Procedures Manual at 112. 

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g. Any other proceedings where jurisdiction is granted by statute. 

[Ibid.] 

An action to compel compliance with a Notice of Unsafe Structure—here, to order demolition of a building—does not fit into any of the first six categories. It also does not qualify under subsection (g), as no statute grants jurisdiction to municipal courts to compel compliance with a Notice of Unsafe Structure. By contrast, N.J.A.C. 5:23-2.31 and N.J.S.A. 52:27D-138 grant municipal courts jurisdiction to enforce penalties imposed by municipal construction officials. 

So, while Woodbridge’s construction official could have issued a fine and then sought to enforce the fine in municipal court, the municipality could not compel compliance in municipal court. The municipal court lacked jurisdiction to order this relief, which would be available only in Superior Court. Cf., N.J.A.C. 5:23-2.31 (noting how a construction official can “request the legal counsel of the municipality . . . institute the appropriate proceedings at law or in equity to restrain, correct, or abate” when a notice of violation or order to terminate have not been complied with). 

This raises the next question: How does the lack of jurisdiction affect this appeal? On de novo review, the Law Division must resentence a defendant using its “independent judgment,” not simply determine whether the defendant is 

13

guilty or not guilty. State v. States, 44 N.J. 285, 293 (1965); R. 3:23-8(e). While Balani did not raise jurisdiction to order his building demolished as an issue in his appellate brief or below, the court would be imposing an illegal sentence— that is, one outside a municipal court’s jurisdiction—if it were to impose the same penalty as the municipal court. That being the case, and because municipal officials did not follow the procedures that would allow this court to impose a fine, the complaint must be dismissed. This is true even though Balani did not appeal the Notices of Unsafe Structure and was not in a position to contest their validity when he appeared in municipal court. 

One final issue requires comment. N.J.A.C 5:23-2.32(b)(2) allows a construction official to, among other things, order a building’s demolition when “there is actual and immediate danger of failure or collapse of a building or structure . . . which would endanger life, or when any structure or part of a structure has fallen and life endangered by the occupation of the building or structure . . . .” This emergency order is effective immediately, but demolition may not begin for twenty-four hours. Ibid. After that, demolition work may begin “unless stayed by order of the Superior Court.” Ibid. The emergency order is appealable “to a court of competent jurisdiction.” N.J.A.C. 5:23- 2.32(b)(6). 

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In its findings, the municipal court said Balani’s property was in imminent danger of collapse and posed a danger to people and property if that were to happen. While the court’s language, to some extent, tracks the required findings under subsection (b)(2), that provision does not apply for two reasons. First, Balani was cited and found guilty under subsection (a), not subsection (b). Second, the regulation delegates to the construction official, not the municipal court, the authority to order emergency demolition. 

It boils down to this: Based on the facts presented, N.J.A.C. 5:23-2.32(b) did not allow the municipal court—and does not allow this court—to order demolition. This finding, though, has an important caveat: The court does not decide whether the construction official met the requirements of subsection (b)(2) and had the ability to order demolition on his own, in other words, as part of his statutorily imposed powers. That issue is beyond the scope of this appeal. 

Conclusion
Based on lack of jurisdiction to order demolition, as well as the failure of 

Woodbridge’s construction official to levy a fine that this court can enforce, the complaint is dismissed. The court will issue an order consistent with this opinion. 

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Police could not extend search to trunk of car State v. McMillian

 Police could not extend search to trunk of car

State v. McMillian

 

Defendant appealed from the denial of his motion to suppress evidence seized during a search of his vehicle at a traffic stop. Police stopped defendant's vehicle after they observed defendant cross over the center line. Defendant advised the officers that he was not the owner of the vehicle and provided the registered owner's name. The officers noticed bits of marijuana scattered across the back seat of the vehicle and detected the odor of raw marijuana. Defendant was removed from the vehicle and searched, admitting to officers that he had smoked marijuana an hour earlier at a friend's house. The officers then searched the interior of the vehicle; after completing that search, they obtained the vehicle keys from defendant and opened the trunk, where the odor of marijuana was strongest. The officers recovered marijuana, cocaine, heroin, and a handgun loaded with hollow point bullets. Defendant moved to suppress the evidence recovered from his vehicle, but the trial court denied the motion, ruling that police lawfully stopped defendant's vehicle for a traffic violation and had probable cause to search the trunk when the marijuana flakes recovered from the vehicle interior were not the likely source of the raw marijuana smell detected by the officers. On appeal, the court reversed the denial of defendant's suppression motion, vacated his conviction, and remanded for further proceedings. The court first noted that a validly initiated warrantless search could become unreasonable in scope. The court ruled that police did not have probable cause to search the trunk of defendant's vehicle, as they never completed the search of the interior of the vehicle where they had initially observed marijuana flakes in plain view. Therefore, the court held that officers had not eliminated the interior as the source of the raw marijuana odor and could not extend the search to the trunk

 

NJLJ July 19, 2022

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

STATE OF NEW JERSEY, Plaintiff-Respondent, 

v. 

JOSHUA MCMILLIAN,
a/k/a BUDAH, and FNU LNU, 

Defendant-Appellant. __________________________ 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3899-19 

Submitted May 17, 2022 – Decided July 19, 2022 

Before Judges Fisher and Currier. 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 16-10- 1572, 19-04-0622 and 19-04-0623. 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). 

Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief). 

Appellant filed a pro se supplemental brief. 

PER CURIAM
Defendant appeals from the trial court's November 4, 2019 order denying 

his motion to suppress. The trial judge found police officers had probable cause to search the trunk of defendant's vehicle after smelling raw marijuana and finding a small amount of marijuana shake while searching the interior of the car.1 Because the officers did not completely search the interior of defendant's car before proceeding to open the locked trunk and the officer did not testify that the shake found in the car could not be the source of the smell of marijuana, we reverse.2 

Defendant was charged in an indictment with: fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1(a); two counts of third-degree possession of a Controlled Dangerous Substance (CDS), N.J.S.A. 2C:35- 10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); two counts of fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3; second-degree 

1 During the suppression hearing, the testifying officer explained that "[s]hake is small pieces of marijuana, that basically come off of the original piece, and when you are attempting to either roll marijuana cigarettes or package it, it's not always all going to go in the bag, so it scatters throughout the area." 

2 Defendant also challenges his sentence. We do not address those issues in light of our decision to reverse the suppression order. 

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unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); fourth-degree prohibited weapons and devices—large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree prohibited weapon and devices—hollow nose/dum-dum bullets, N.J.S.A. 2C:39-3(f)(1); and second-degree possession of a firearm while engaged in CDS distribution activity, N.J.S.A. 2C:39-4.1(a). He was charged in a subsequent indictment with two second-degree certain persons not to have weapon, N.J.S.A. 2C:39-7(b)(1). In addition, defendant had pending charges from Ocean County. 

Defendant moved to suppress the evidence found during a search of the trunk of a vehicle he was driving following a traffic stop. We derive the following facts from the testimony presented at the suppression hearing and a review of the body camera footage. 

While on patrol, Edison police officer Joseph DePasquale observed a car that was crossing slightly over the lane into oncoming traffic and then moving back into its own lane. DePasquale and his partner, Steven Nappe, followed the car into a parking lot and then conducted a motor vehicle stop. The interaction was recorded on the officers' body cameras. 

DePasquale approached the driver's side of the car and requested the driver's license––the driver of the vehicle was identified as defendant. Nappe 

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went to the passenger's side. Defendant told police he was not the owner of the vehicle and gave the registered owner's name. DePasquale stated he observed "small pieces of marijuana shake scattered throughout the back seat of the vehicle" and "rolling papers underneath the driver's seat." He also detected the odor of raw marijuana coming out of the car. 

As DePasquale returned to his patrol car to check defendant's credentials, two other officers arrived––Parenty and Paone. Before returning to defendant's car, DePasquale turned his microphone off and spoke with another officer. When asked about the reason for muting his microphone on his body camera, DePasquale stated that he did so to explain 

to the other officers who arrived on-scene what [he] was going to do next, because at that point [he] had already detected the odor of marijuana and [he] did a look-up of the information, . . . and based off of that, [he] knew [he] was going to search the vehicle. 

DePasquale asked defendant to get out of the vehicle and then searched him. Defendant told the officer that he had smoked marijuana an hour earlier at a friend's house and he was wearing the same clothes. DePasquale replied, "I can smell it coming off your clothes" and "because of that I'm gonna search you a little better and then I'm gonna search the car." While searching defendant, DePasquale found rolling papers on his person. 

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After searching defendant, DePasquale and Parenty searched the vehicle. After entering the passenger's front side of the vehicle to begin the search, Parenty stated, "It smells in here too." DePasquale and Parenty then muted their microphones. 

DePasquale searched the front and back of the car on the driver's side, while Parenty searched the front passenger side. However, Parenty never searched the back seat on the passenger's side or even opened the back passenger side door. After DePasquale pushed up the rear seat arm rest, his camera showed very small pieces of marijuana "shake" in the back seat. A box of rolling papers is also seen in the center console. 

DePasquale testified that, "throughout the search of the vehicle, as [he] went towards the rear of the vehicle, once [he] folded down the armrest, that's when [he] was able to detect the odor of marijuana to be at its strongest point throughout the entire stop." 

DePasquale then described his subsequent actions: 

[THE STATE:] . . . At this point has your search of the interior of the vehicle concluded? 

[DEPASQUALE:] For the front compartments, yes. 

[THE STATE:] And after you finished searching that portion of the car, what did you do? 

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[DEPASQUALE:] After that, I got back out of the vehicle and I approached the defendant and notified him that I would need his car key to search the remainder of the vehicle. 

[THE STATE:] And what was [defendant]'s reaction when you asked for his keys to search his trunk? 

[DEPASQUALE:] [Defendant] was cooperative and he provided me with the keys. It wasn't until I had started walking towards the trunk of the vehicle when he became irate . . . . 

DePasquale's and Parenty's microphones were muted while Parenty retrieved the car keys from defendant. Nappe's microphone was on. When Parenty asked defendant if he had the keys, defendant handed them to the officer. However, as DePasquale walked to the back of the vehicle to open the trunk, defendant became visibly and audibly upset. Nappe's microphone remained on for the following exchange before defendant was placed in the patrol vehicle. 

Defendant said, "Hold on, hold on . . . . why are you going in the trunk for? . . . . You have to ask for probable cause." Parenty responded, "The odor of marijuana" was the probable cause. DePasquale stated, "We have stuff that shows you used marijuana in the car." Defendant remained agitated, stating the officers did not find anything in the car and, therefore, they could not go into the trunk. After two minutes of defendant objecting to the officers' entry into the locked trunk, they placed him in the back of a patrol car. 

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After opening the trunk and lifting the liner, the officers found a "sandwich bag containing marijuana, one grinder, one tied off bag containing cocaine, . . . . three bricks of heroin broken down into five bundles each, and an additional four bundles of heroin totaling 190 bags," a cutting agent for cocaine and heroin, and a "Smith and Wesson [forty] caliber handgun with an extended magazine which was loaded with [twenty] hollow point bullets." The officers then arrested defendant. 

During the suppression hearing, DePasquale stated that not all marijuana smells the same, explaining that in some instances he would "step out of [his] vehicle and . . . already . . . smell the odor of marijuana," but the search of the car might only reveal five grams of marijuana. Whereas in other instances, there would only be a "faint odor" of marijuana even though a subsequent search of the car resulted in the discovery of 150 grams of marijuana. He said that the smell "depends on how [the marijuana] is packaged, how long it's been sitting in that area." "If it's vacuum sealed, it's going to be a little bit harder to sm[e]ll. I[f] it's in a sandwich bag and it's been sitting in that area, it's had time to . . . make that whole area smell like the marijuana." He also said the quality of the marijuana can affect the strength of its smell. 

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In its November 4, 2019 order, the trial court found the police lawfully stopped defendant's car after observing a motor vehicle violation. The court stated further: 

And finding Patrolman DePasquale to be credible based on his testimony given at the hearing . . . that the smell of marijuana emanated from the vehicle and during the course of the vehicle search he found marijuana shake in the backseat armrest, and his testimony that this amount of marijuana could not be the source of the smell, could reasonably lead his search to the trunk of the vehicle to locate the source of the marijuana smell. 

(emphasis added)
The court denied the suppression motion. 

Defendant subsequently pleaded guilty to third-degree possession of a CDS with intent to distribute and second-degree possession of a firearm while engaged in CDS distribution activity. He also pleaded guilty to the certain persons offense. The guilty pleas resulted in a probation violation of a prior 2016 conviction. 

Defendant was sentenced on the violation of probation to three years imprisonment with no parole ineligibility, to run concurrent to the sentence of five years imprisonment with two and a half years of parole ineligibility for possession with intent to distribute and concurrent to five years of imprisonment with a five year period of parole ineligibility on the certain persons offense and 

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consecutive to seven years of imprisonment with a three and a half year period of ineligibility for possessing a firearm during a CDS distribution. These sentences all were consecutive to a five-year term of imprisonment with a forty- two-month period of parole ineligibility for the unrelated Ocean County convictions. 

Defendant presents the following points for our consideration: 

POINT I
AFTER HAVING FOUND A SMALL AMOUNT OF MARIJUANA IN THE PASSENGER COMPARTMENT POLICE 

UNCONSTITUTIONALLY
WARRANTLESS SEARCH TO THE TRUNK. 

POINT II
THE MATTER MUST BE REMANDED FOR RESENTENCING. 

A. The Sentencing Court Failed to Articulate Its Reasons For Finding Aggravating Factors Three and Nine[.] 

B. The Court Sentenced [Defendant] Consecutively to the Governing Sentence in Ocean County Without Considering the Overall Fairness of the Aggregate Sentence, Pursuant to State v. Torres. 

Our scope of review of the grant or denial of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We will "uphold the factual findings underlying the trial court's decision so long as those findings are 

EXTENDED THE 

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supported by sufficient credible evidence in the record." State v. Carrion, 249 N.J. 253, 279 (2021) (citation omitted). We defer to those factual findings because of the trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). 

We also "defer to [the] trial court['s] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Mordente, 444 N.J. Super. 393, 397 (App. Div. 2016) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). 

Therefore, the "trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Nelson, 237 N.J. 540, 551-52 (2019) (quoting Robinson, 200 N.J. at 15). However, our review of a trial court's conclusions of law is de novo. State v. Diaz, 470 N.J. Super. 495, 513 (App. Div. 2022). 

"Both the United States Constitution and the New Jersey Constitution guarantee an individual's right to be secure against unreasonable searches and seizures." State v. Minitee, 210 N.J. 303, 318 (2012). Thus, searches and seizures conducted without a warrant "are presumptively invalid as contrary to 

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the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)). The State has the burden to prove by a preponderance of the evidence "that the search falls within one of the few well-delineated exceptions to the warrant requirement." Id. at 19 (citations omitted). 

In State v. Witt, 223 N.J. 409 (2015), our Supreme Court stated that police officers may conduct a warrantless, nonconsensual search during a lawful roadside stop in situations where: (1) the police have probable cause to believe the vehicle contains evidence of a criminal offense; and (2) "the circumstances giving rise to probable cause are unforeseeable and spontaneous." 

Prior to the legalization of marijuana in New Jersey,3 in certain circumstances, our courts have "recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." State v. Walker, 213 N.J. 281, 290 (2013) (internal quotation marks omitted) (quoting State v. Nishina, 175 N.J. 

3 

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, N.J.S.A. 24:6I-31 to -56 (the Act), became effective on February 22, 2021. Under the Act, an odor of marijuana cannot create a reasonable suspicion or probable cause to conduct a warrantless search. N.J.S.A. 2C:35-10c(a). In a recent decision, this court held that the Act is to be applied prospectively. State v. Gomes, ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 27). 

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502, 515-16 (2003)); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Mandel, 455 N.J. Super. 109, 114-15 (App. Div. 2018); State v. Myers, 442 N.J. Super. 287, 304 (App. Div. 2015). When the persistent smell of unburned or raw marijuana is detected, probable cause has been found to support even a warrantless search of a vehicle's trunk when an officer is unable to "pinpoint the source" of that odor. State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div. 1980); see State v. Guerra, 93 N.J. 146, 149-50 (1983) (finding probable cause to justify the search of a vehicle's trunk when the officer searching the vehicle concluded the "strong odor of marijuana" could not have been emanating from a small suitcase within the "car's interior"). 

However, even if an officer has "probable cause to believe that the vehicle is carrying contraband[,] . . . the search must be reasonable in scope." Patino, 83 N.J. at 10. Although a search may first be "validly initiated, [it] may become unreasonable because of its intolerable intensity and scope." Id. at 10-11 (citing Terry v. Ohio, 392 U.S. 1, 18-19 (1968)). "The scope of a warrantless search of an automobile is defined by the object of the search and the places where there is probable cause to believe that it may be found." State v. Esteves, 93 N.J. 498, 508 (1983) (citations omitted). 

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In Patino, after finding a container "six inches long and an inch in diameter" that was "half-full of green vegetation" and "a hand-rolled marijuana cigarette" and searching the remainder of the passenger compartment, the officer searched the trunk and found cocaine. 83 N.J. at 5-6. The Court found the search of the trunk unconstitutional, holding that "[a] small amount of marijuana . . . alone without other circumstances that suggest participation in drug traffic or possession of more contraband" does not allow an officer to extend his search to the trunk. Id. at 14-15. The facts did not reflect the officer smelled marijuana inside the car. 

This court did consider the implications of an officer smelling marijuana in a vehicle in Kahlon. After pulling a vehicle over for traveling at a slower speed than normal on a highway, the officer asked the defendant to roll down the window. 172 N.J. Super. at 335-36. When the defendant complied, the officer "smelled an odor he believed to be burning marijuana." Id. at 336. The defendant admitted he had smoked marijuana. Ibid. After patting down the occupants of the car, the officer searched the vehicle "to determine the area from which the odor of marijuana had emanated." Ibid. 

His search of the passenger compartment revealed "a half-burned marijuana cigarette . . . approximately one inch long " and, "from his training[,] 

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[he] thought the [cigarette] to be unusually large." Ibid. He also found "a clear plastic bag filled with . . . approximately 1/2 ounce of marijuana and a package of cigarette wrapping papers." Ibid. The officer arrested the defendant and continued his search of the passenger compartment. Id. at 336-37. He found nothing more, but stated he smelled a "very heavy odor of unburned marijuana." Id. at 337. 

The officer then searched the trunk. There he "smelled a very heavy odor of unburned marijuana" and found "several suitcases and a cardboard box," which was not "completely" closed. Ibid. In the box was a plastic bag. Ibid. The officer said he "was positive . . . the odor of unburned marijuana" was coming from the bag. Ibid. The bag had holes in it, which the officer widened and found marijuana. Ibid. He also found a scale underneath another bag in the trunk. Ibid. 

The trial court suppressed the evidence found in the trunk. Id. at 335. We reversed, finding that because the officer could not "pinpoint the source of the smell," along with the marijuana found in the passenger compartment, he could reasonably conclude the odor was coming from the trunk and, therefore, had probable cause to search the trunk for the drugs. Id. at 338. 

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Defendant does not challenge the stop of the vehicle, or the search of his person and the passenger compartment of the car. The issue is whether the police officers had probable cause to search the trunk of the car. After reviewing the totality of the circumstances, we conclude they did not. 

After viewing marijuana shake in the car, and smelling raw marijuana, the officers had probable cause to search the interior of the vehicle. Which they did. However, a review of the body camera footage reveals the officers did not complete that search prior to undertaking the warrantless search of the trunk. The officers never searched the back seat on the passenger side of the car. Therefore, DePasquale did not eliminate the possibility that the odor was coming from the passenger compartment by searching the entirety of the car. Moreover, the trial judge mistakenly found that because DePasquale testified that the small amount of marijuana in the back arm rest "could not be the source of the smell," it was reasonable for the officer to continue his search into the trunk. But DePasquale never said he could not identify the source of the smell. He never stated the odor was not emanating from the shake found in the car. And the officers did not complete the interior search of the back seat. Therefore, the officers did not have a reasonable and articulable suspicion that a crime was being committed to satisfy a finding of probable cause to extend the search to 

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the trunk. The trial judge misstated the testimony of the officer and therefore mistakenly granted the motion to suppress. 

We reverse the order denying the suppression motion and vacate the conviction and sentence pertaining to this indictment. We remand to the trial court for further proceedings regarding the effect this decision may have on defendant's sentence arising out of the Ocean County conviction. 

Reversed, vacated, and remanded for further proceedings. We do not retain jurisdiction. 

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